Federal courts likely to kill DACA program for 'dreamers'

Gerson Gonzalez, 25, has Deferred Action for Childhood Arrivals status. Department of Homeland Security Secretary John Kelly said this week that the program is in jeopardy(Photo: Cheryl Evans/The Republic)

President Barack Obama's program that has protected 800,000 young immigrants from deportation is likely to be struck down soon by federal courts, predict the Trump administration and even defenders of the program.

Department of Homeland Security Secretary John Kelly warned the Congressional Hispanic Caucus this week that the program to protect so-called "dreamers" is in jeopardy, assuming 10 Republican-led states follow through on threats to mount legal challenges to the program by September.

The Deferred Action for Childhood Arrivals program, or DACA, allows young people illegally brought to the United States as children to stay and receive work permits, providing they don't commit any disqualifying crimes.

“It really hurts me to say this, but the chances of it surviving are very slim.”

Stephen Legomsky, former Homeland Security senior counselor

The legal challenges are based on claims that Obama lacked authority to grant "amnesty" to dreamers.

Stephen Legomsky, a senior counselor at Homeland Security under Obama, said the former president was well within his legal rights when he created DACA. But Legomsky doubts the program will survive because its fate will be decided by a conservative judge in Texas, a conservative appeals court in Louisiana and the conservative-leaning Supreme Court.

"It really hurts me to say this, but the chances of it surviving are very slim," said Legomsky, now a professor emeritus at the Washington University School of Law.

Kelly, who spoke Wednesday to the Hispanic lawmakers, said he is sympathetic to the plight of dreamers and would like Congress to pass a law permanently protecting them. That is highly unlikely, however, with Republicans in control of both the House and Senate.

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Gonzalez came to the U.S. from Mexico as a teenager.Gerson Gonzalez rides a city bus to North High School in Phoenix in 2011. Two buses and one light-rail ride get him to school. Cheryl Evans/The Republic

Alex Sau (from left), Jonathan Labrada and Gerson Gonzalez joke around outside of their home, a trailer in Phoenix, in 2011. The three spent their senior of high school surviving on their own. Cheryl Evans/The Republic

Gerson Gonzalez (second from left) and Alex Sau both reach for some tamales in their Phoenix trailer as they eat with Jonathan Labrada's younger brother (left) and friend Jordie in 2011. Cheryl Evans/The Republic

Gerson Gonzalez (left) and Alex Sau stand by the roadside selling Jonathan Labrada's furniture from the trailer in 2011. The three must clean out and remove the trailer before Gerson and Jonathan start college. Cheryl Evans/The Republic

Gerson Gonzalez (from left), Alex Sau and Jonathan Labrada move out and demolish their Phoenix trailer in 2011. The three undocumented immigrants lived together during their senior year of high school. They are destroying the trailer to get the $400 deposit for removing the trailer from its space. Cheryl Evans/The Republic

Jonathan Labrada (left) and Gerson Gonzalez carry their refrigerator to a neighbor's home after they sold it during a moving sale in 2011. In the background is roommate Alex Sau. Cheryl Evans/The Republic

Gerson Gonzalez and Alex Sau talk outside their half-demolished trailer in 2011. The three are tearing down the trailer to sell off the metal for cash and get their $400 deposit for removing the trailer from its parking spot. Cheryl Evans/The Republic

Gerson Gonzalez (from left), Alex Sau and Jonatha Labrada take a break from tearing part of the trailer down in the hot August sun in 2011. The trailer had been their home while they attended their senior year of high school at North in Phoenix. Cheryl Evans/The Republic

Alex Sau (left) and Gerson Gonzalez stand by the roadside selling Jonathan Labrada's furniture from the trailer in 2011. The three must clean out and remove the trailer before Gerson and Jonathan start college. Cheryl Evans/The Republic

Gerson Gonzalez (left) and Jonathan Labrada relax while they try to sell Jonathan Labrada's furniture from the trailer roadside during a hot summer August day in 2011. They must clean out and remove the trailer before they start college. Cheryl Evans/The Republic

Alex Sau (left) and Gerson Gonzalez try to sell Jonathan Labrada's furniture from the trailer roadside during a hot summer August day in 2011. The three must clean out and remove the trailer before Jonathan and Gerson start college. Cheryl Evans/The Republic

Jonathan Labrada (left) and Gerson Gonzalez look at books in the Fleming Library at Grand Canyon University in Phoenix in 2012. The boys have just finished their freshman year at the school on scholarship. Cheryl Evans/The Republic

Jonathan Labrada (left) and Gerson Gonzalez look at books in the Fleming Library at Grand Canyon University in Phoenix in 2012. The boys have just finished their freshman year at the school on scholarship. Cheryl Evans/The Republic

Gerson Gonzalez, 25, leaves the U.S. Citizenship and Immigration Services Phoenix field office after being fingerprinted as part of the process for renewing his DACA (Deferred Action for Childhood Arrivals ) card in March 2017. Cheryl Evans/The Republic

Gerson Gonzalez reapplies for his Deferred Action for Childhood Arrivals card at First Congregational United Church of Christ in Phoenix, with the help of Keep Phoenix Together, a legal clinic, in March 2017. Cheryl Evans/The Republic

Gerson Gonzalez reapplies for his Deferred Action for Childhood Arrivals card at First Congregational United Church of Christ in Phoenix during a Keep Phoenix Together legal clinic in March 2017. Cheryl Evans/The Republic

Alexis Chavez helps her husband, Gerson Gonzalez, reapply for his Deferred Action for Childhood Arrivals card at First Congregational United Church of Christ in Phoenix during a Keep Phoenix Together legal clinic in March 2017. Cheryl Evans/The Republic

Gerson Gonzalez reapplies for his Deferred Action for Childhood Arrivals card at First Congregational United Church of Christ in Phoenix, with the help of Keep Phoenix Together, a legal clinic, in March 2017. Cheryl Evans/The Republic

Gerson Gonzalez reapplies for his Deferred Action for Childhood Arrivals card at First Congregational United Church of Christ in Phoenix, with the help of Keep Phoenix Together, a legal clinic, in March 2017. Cheryl Evans/The Republic

Gerson Gonzalez reapplies for his Deferred Action for Childhood Arrivals card at First Congregational United Church of Christ in Phoenix, with the help of Keep Phoenix Together, a legal clinic, in March 2017. Cheryl Evans/The Republic

Gerson Gonzalez, his son, Eli, 2, and his wife, Alexis Chavez, play outside their family home in March 2017. Gonzalez has a DACA card but still worries about his future in the United States under President Trump. Cheryl Evans/The Republic

Homeland Security spokesman David Lapan said Thursday that attorneys both inside and outside his department have concluded that "if DACA is challenged in court, it would likely fail."

The Justice Department, which would be responsible for defending DACA in court, declined to comment.

Trump pledged during his presidential campaign to terminate DACA, claiming Obama overstepped his authority. After the election, Trump changed course, saying he would treat dreamers "with great heart" and allowed the program to continue.

Frank Sharry, executive director of America's Voice, a group that advocates for immigrants, called it a "Code Red moment."

Rep. Luis Gutierrez, D-Ill., who has led congressional efforts to legalize undocumented immigrants, accused Kelly of "playing along with Trump's agenda to deport millions and pretending to not understand his powers to do something about it."

The Republican-led lawsuit against DACA would likely follow the same course as a previous, successful challenge against Obama's immigration policies.

In a 2015 ruling, U.S. District Judge Andrew Hanen, a Texas judge appointed by President George W. Bush, struck down Obama's attempt to expand deportation protections to a broader group of immigrants without legal status, including parents of U.S.-born children. That program, called DAPA, never went into effect.

“If my lawyers told me that something I was doing was unconstitutional, I would stop doing it.”

Jessica Vaughan, Center for Immigration Studies

Hanen's ruling was upheld by the U.S. Court of Appeals for the 5th Circuit in New Orleans later that year. That court, which includes 14 judges appointed by Republican presidents and eight appointed by Democrats, ruled that Obama violated federal immigration laws by unilaterally creating a massive class of people that could not be deported.

"The (Immigration and Nationality Act) flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization," the court wrote in a 2-1 opinion.

The case went to the Supreme Court when it had a vacancy following the death of Justice Antonin Scalia. The result was a 4-4 deadlock that left the 5th Circuit ruling in place, killing the DAPA program.

Texas Attorney General Ken Paxton, a Republican, is leading a drive with other states to challenge DACA on the same grounds. Joining Texas are the attorneys general of Alabama, Arkansas, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee, West Virginia, and Idaho Gov. C.L. "Butch" Otter.

Jessica Vaughan, director of policy studies at the Center for Immigration Studies, which advocates for lower immigration, said the fate of DACA is already sealed, so Trump should end the program now.

"If my lawyers told me that something I was doing was unconstitutional, I would stop doing it," she said.